Trilochan Saha vs The State Of West Bengal & Ors
2023 Latest Caselaw 4559 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                           Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri

                            WPA 11312 of 2023

                               Trilochan Saha
                                     Vs.
                         The State of West Bengal & Ors.

                                     With

                            WPA 14869 of 2023

                                 Trilochan Saha
                                     Vs.
                         The State of West Bengal & Ors.


For the petitioner:   Mr. Saptangshu Basu, Sr. Adv.
                      Mr. Ramesh Dhara
                      Ms. Mousumi Chowdhury


For the State     :   Mr. Supratim Dhar
                      Mr. Swarnava Banerjee
                      Mr. Amrit Lal Chatterjee

Item Nos.73 & 74

Heard & Judgment on:        31.07.2023

Bibek Chaudhuri, J.

Both the writ petitions are taken up for analogous hearing as

the petitioner of both the writ petitions is the same and identical

person challenging a process of recruitment of distributorship under

W.B.P.D.S. (Maintenance and Control) Order, 2013.

In W.P.A. 11312 of 2023 it is stated by the petitioner that the

DDP&S, Food & Supplies Department, Government of West Bengal,

respondent No.2 herein invited applications for filling up the vacancy

of the distributor under Block Murarai-II Sub-Division, Rampurhat in

the district of Birbhum. The petitioner made an online application as

directed in the said notification specifying all information relating to

eligibility criteria of the petitioner in favour of his claim for

distributorship. Subsequently, a spot inquiry was held on 28 th

December, 2022 by the Inspecting Team of Food and Supplies

Department. All necessary documents were inspected by them but no

final selection list was published by the respondent No.2 in respect of

the said vacancy. It is the case of the petitioner that he made as

many as two representations before the respondent authorities but

those representations were not entertained or replied by the

respondents.

Under such circumstances, the petitioner has prayed for

issuance of a writ in the nature of mandamus commanding the

respondents and each of them to forthwith rescind, recall and / or

withdraw the decision of refusing to give appointment letter and

licence to the petitioner against the vacancy in question forthwith.

The petitioner has also prayed for issuance of writ in the nature of

mandamus commanding the respondents to give appointment letter

and licence to the petitioner in respect of the vacancy of the above

mentioned distributor.

At the outset, this Court finds it absolutely necessary to state

that the case of the petitioner in W.P.A. 11312 of 2023 was that his

application for granting licence in respect of distributorship of

Murarai-II Block was not considered by the respondents and the

respondents also did not give any reply to the representations filed by

the petitioner.

Thus, it is clear from the averment made by the petitioner that

he was not aware of the fate of the vacancy notification dated 1 st

September, 2022. In that view of the matter, the prayer of the

petitioner to forthwith rescind, recall and/or withdraw the decision of

refusing to give appointment letter and licence to the petitioner is

premature and cannot be taken into consideration. On this score only

this Court is not in a position to give any relief in respect of

WPA/11312/2023.

Next comes WPA/14869/2023 filed by the petitioner praying for

a writ in the nature of mandamus commanding the respondents,

particularly respondent no. 1 to rescind, recall and/or withdraw the

decision of cancelling the vacancy notice dated 1 st September, 2022

which is the subject-matter of WPA/11312/2023. The petitioner has

also prayed for a direction against the respondents, particularly

respondent nos. 1 and 2 to cancel vacancy notice dated 1 st June,

2023.

In the instant writ petition, it is submitted by the petitioner that

on 1st September, 2022 a vacancy notification for granting licence of

distributorship in Murarai -II block was issued. The petitioner made

an application in form 'G' in the online portal of the Food and Supplies

Department. In the said form, he clearly mentioned the specification

of his godown with plinth level. However, without assigning any

reason previous notification dated 1 st September, 2022 was cancelled

by the respondent authority and present notification dated 1 st June,

2023 was published.

The Deputy Director of DDP&S, Food and Supplies has filed a

report in the form of affidavit in the instant writ petition on 4 th July,

2023 stating, inter alia, that in respect of the previous notification

dated 1st September, 2022 an Inspecting Team examined the godown

of the petitioner and found that there was no plinth level of the

godown of the petitioner since a sole of fillings was constructed up to

the floor level of the said godown. Secondly, there was no varandah

or loading platform in the said godown. Therefore, his application was

rejected. In view of rejection of his previous application the

respondent authority has published a fresh notification on 1 st June,

2023 for filling up of the said vacancy.

It is submitted by the learned Advocate for the State that the

petitioner is always entitled to take part in the second vacancy

notification with similar prayer subject to fulfillment of the

specification as to the godown.

Mr. Basu, learned Senior Counsel on behalf of the petitioner

contended that plinth level of the godown or existence or non-

existence of a varandah in front of a godown for the purpose of

loading are not two essential grounds for which one's application

could be rejected. In support of his contention Mr. Basu refers to an

unreported decision of this Court in WPA/8833/2023, Pawan Kumar

Agarwal -Vs.- State of West Bengal & Ors., decided on 27 th June,

2023. In the said judgment this Court had the occasion to deal with

specification criteria in respect of the godown which is delineated in

Clause 6(e) of part II of the vacancy notification. In the said decision

the application of the petitioner was rejected on the ground that the

petitioner does not have concrete wall on all four sides of the godown.

The Court found that one side of the godown was brick built up to 10

feet level and the remaining four feet was covered by corrugated

sheet. It was also found that the back portion of the corrugated sheet

was covered by brick built wall. Therefore, contention of the

respondents was rejected on the ground that the petitioner had brick

built wall on all four sides of the said godown.

In the instant case, the inquiry report in respect of the

application filed on the basis of vacancy notification dated 1 st

September, 2022 shows that the petitioner constructed a slope up to

the floor level of the godown so that the tracks carrying FPS materials

can directly enter inside the godown of the petitioner.

Dictionary meaning of the term 'plinth' is the built up covered

area measured at the floor level of the basement or of any storey.

Thus, plinth area means the sum total of floor area contained in all

storeys of a building, the measurement for which shall be taken from

the external faces of the enclosing wall or other boundaries of such

buildings.

In the vacancy notification, by the term 'plinth' the respondents

want to mean the height of the floor area from the ground level and

measurement thereof. According to the vacancy notification, the

measurement of the 'plinth' or 'floor level' shall be two feet from the

road level or ground level.

If there is a slope raising to the floor level of the godown of the

petitioner plinth level could be measured from three side walls by

taking measurement of the floor level from the road/ground level.

Since the petitioner did not raise any dispute with regard to

non-existence of varandah in front of the godown for loading purpose,

this Court refrains from making any observation thereof.

Learned Advocate for the petitioner submits a Division Bench

Judgment of this Court passed in FMA/913/2020 on 9 th October, 2020

in M/s. Kultali Food Marketing Private Limited & Anr. -Vs.- State of

West Bengal & Ors. The factual circumstances of this unreported

decision is distinguishable from our case and hence is not applicable

under the facts and circumstances of the present case.

In view of the above discussion WPA/11312/2023 is dismissed

on contest being premature.

WPA/14869/2023 is disposed of permitting the petitioner to

take part in the notification dated 1 st June, 2023. It is made clear

that in order to ascertain the plinth level of the petitioner's godown,

observation of this Court shall be followed by the Inspecting Team

and the Inspecting Team shall take independent decision in

accordance with law on all other points without being influenced in

any way by any observation made in the instant writ petition.

The petitioner is specially permitted to take part in respect of

the vacancy notification praying for his appointment as distributor of

Murarai -II block. This order is passed under the facts and

circumstances of this case only and it will not act as a precedent in

other matters.

Both the writ petitions are, accordingly, disposed of.

(Bibek Chaudhuri, J.)